[CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP

[Dr Eberhard W Lisse]

It is however our job to do things by consensus.


el

-- 
Sent from Dr Lisse's iPad mini

> On Mar 14, 2015, at 23:36, Steve DelBianco <sdelbianco at netchoice.org> wrote:
> 
> It’s not really our job to look-back and second-guess prior decisions.   Yet, it’s really helpful to use examples form the recent past to fashion stress tests and evaluate whether we’ve designed accountability measures that answer the test. 
> 
> To that end, we have Stress Tests #20 and #23, which approach the problems surfaced by the Booking IRP.  See below:
> 
> Stress Test:
> #20. A court order is issued to block ICANN’s delegation of a new TLD, because of complaint by existing TLD operators or other aggrieved parties.
> 
> Consequence: ICANN’s decision about whether to honor such a court order could bring liability to ICANN and its contract parties.
> 
> Existing Accountability Measures:
> In the example of singular/plural gTLDs, the board’s decision to accept independent panel rulings was not subject to community scrutiny: the community had no standing to object; and Reconsideration requests looked only at process and not at the substance of the decision. 
>  
> If ICANN board discarded policy in order to respond to the court order, the community would not have standing or means to challenge or veto that decision.
>  
> Proposed Accountability Measures:
> Preventive: During policy development, the community would have standing to challenge management and board decisions about policy and implementation.
>  
> Remedial:  If consensus policy were adopted but the ICANN board discarded policy in order to respond to the court order, the community has several options:
> 
> One proposed measure would empower a supermajority of ICANN community representatives to veto a board decision.
>  
> Another measure would give the community standing to file for Reconsideration or IRP [what would be the standard of review?]
>  
> Another measure would allow community to force ICANN to implement a consensus policy or recommendation of an AoC Review.
> 
> Preliminary Conclusions:
> This threat is not directly related to the transition of IANA stewardship
>  
> Existing measures would be inadequate.
>  
> Proposed measures would be an improvement but might still be inadequate. 
> —
> 
> Stress Test:
> #23. ICANN uses RAA or other agreements to impose requirements on third parties, outside scope of ICANN mission. Affected third parties, not being contracted to ICANN, have no effective recourse against ICANN.  Contracted parties, not being implicated by the requirements themselves, do not avail themselves of mechanisms allowing them to challenge ICANN’s decision. 
> 
> Consequence: ICANN seen as a monopoly leveraging power in one market (domain names) into adjacent markets.
>  
> Existing Accountability Measures:
> Affected 3rd parties (e.g. registrants and users) have no standing to challenge ICANN on its approved policies.
> 
> Affected 3rd parties (e.g. registrants and users) have no standing to challenge ICANN management and board on how it has implemented approved policies.
> 
> If ICANN changes its legal jurisdiction, that could affect the ability of aggrieved 3rd parties to sue ICANN. 
>  
> Proposed Accountability Measures:
> Affected 3rd parties (e.g. registrants and users) could lobby for these community powers of review and redress:
> 
> A proposed measure to empower a supermajority of ICANN community representatives to veto a board decision.  
> 
> A proposed measure to empower the community to challenge a board decision, referring it to an Independent Review Panel (IRP) with the power to issue a binding decision.    [What would be the standard used for this review?]
> 
> Another proposed measure is to amend ICANN bylaws to prevent the organization from expanding scope beyond what is needed for SSR in DNS operations and to meet mission and core values of ICANN.
> 
> Preliminary Conclusions:
> This threat is not directly related to the transition of IANA stewardship
>  
> Existing measures would be inadequate.
>  
> Proposed measures are …   ?
> 
> 
> 
> From: Dr Eberhard Lisse
> Organization: Dr Eberhard W Lisse
> Reply-To: Dr Eberhard Lisse
> Date: Wednesday, March 4, 2015 at 2:18 AM
> Cc: "directors at omadhina.net", "accountability-cross-community at icann.org"
> Subject: Re: [CCWG-ACCT] Declaration issued in the Booking.com v ICANN IRP
> 
> Chris,
> 
> this is an amazingly good idea :-)-O
> 
> As long as the case is closed.
> 
> el
> 
> On 2015-03-04 08:07, Chris Disspain wrote:
> Greg,
> I think both you and Philip raise interesting points.  A useful
> exercise for the CCWG may be to examine the booking.com
> <http://booking.com> -v- ICANN IPR and consider what recourse
> mechanisms the CCWG believes should have been available to any of
> the relevant parties and at what times during the process.  This
> may help clarify the difference between (and community desire for)
> recourse mechanisms that test policy decisions, decisions of
> independent panels, decisions of the Board and so on.
> And, as a separate question, in respect to your comments below
> about mechanisms that go directly to the merits of a decision,
> what decision would that apply to in this case?
> Cheers,
> Chris Disspain
> 
> [...]
> --
> Dr. Eberhard W. Lisse  \        / Obstetrician & Gynaecologist (Saar)
> el at lisse.NA            / *     |   Telephone: +264 81 124 6733 (cell)
> PO Box 8421             \     /
> Bachbrecht, Namibia     ;____/
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